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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47341
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have a disciplinary hearing coming up against me on Friday.

Resolved Question:

I have a disciplinary hearing coming up against me on Friday. I have joined the union but because it was after the event took place they can `t represent me. I have had no joy with their helplines either.
I am an HGV driver and at the moment on a temporary contract with one of the big supermarkets. I have always been helpful and done more work than required, unfortunately I did get two infringements for not taking enough weekly rest. when my weekly rest is due I inform the manager so as not to go over my time. my contract is 45 hours a week any 5 of 7 doing 9 hour shifts.
last Friday I was asked to do a second run that would have taken me past my 9 hours shift time and overtime is not compulsory. however it was also my weekly rest so I did not want an infringement again. I pre warned the manager of this and told him I would take it as they were stuck for drivers but if there were any other waggons waiting I could not wait to get tipped and would have to return. of course there were waggons there and I had no credit on my phone but calls to my girlfriend are free so I asked her to inform the manager that I was on my way back.
upon returning to the yard the manager was angry at me and first told me it was not my decision to make as I am just a driver which angered me. he said he had organised for them to tip me first. when I said the fork lift driver had not told me this his reply was he is just a forklift driver! I stormed out of the room.
when I came back he took me upstairs to do an investigation and asked if I wanted someone present I said no so he wrote down the conversation between us. at the end he told me I was going to be getting a serious disciplinary for me not ringing the depot personally, I said I will not get set on full time now so I told him I will hand in my notice.
I handed in my notice in on Monday my first shift back, but the SM manager took me upstairs and told me that the other manager had not followed the correct procedure and so his investigation was thrown away and a new one will now take place on Friday. they confirmed this with a letter that same day. after searching on the internet I have found out that he should have followed three steps the first being a letter explaining what the disciplinary is for, which he had not done. this seems to be the minimum requirement. the second thing I found out is because he did not have someone present to take notes and took out this investigation on his own, he has not followed company procedures and it says I can sue for breach of contract.
this is what I found on GMB `s website: It might also be unfair if the instruction, although legal, was beyond your contract and clearly unreasonable
I believe that because it was going to take me over my 9 hours that this was indeed unreasonable. I took this run to try and help out as I have always done anybody else would have refused it point blank. I even reduced my break in the yard to 30 minutes instead of 50 minutes to try and get back in time so as to not get an infringement. after speaking to other drivers none of them would have even reduced their break.
I am deeply hurt that this manager has taken my kindness and generosity and thrown this back in my face. I really need some advice on what action to take, I am not sure what I need to take into this meeting on Friday one of the union men said he could have got me off on a technicality but he will not tell me what it is, or, can`t tell me or he will be in bother with the union for helping. I do have an ex shop steward coming into this meeting with me but he is not allowed to say anything in regards ***** ***** investigation and can only speak to me and advise me.
if there is any information other than that I have already provided please can you let me know before Friday, thank you for your time.
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long have you worked there for?

Customer:

Hello Ben I started in July last year and I have just had my first temporary 6 months contract extended until this july when they will make a decision if to set me on or not. at my last renewal the transport manager wanted to set me on there and then because of all the good work I had done but her hands were tied and could not due to it being the company having to be able to fit it in with their business structure.

Ben Jones :

ok thanks leave it with me please I will get back to you this evening with a full response

Ben Jones :

Thanks for your patience. If you have been continuously employed at your place of work for less than 2 years then your employment rights will unfortunately be somewhat limited. Most importantly, you will not be protected against unfair dismissal or constructive dismissal. This means that your employer can dismiss you or force you to resign for more or less any reason, and without following a fair procedure, as long as their decision is not based on discriminatory grounds (i.e. because of gender, race, religion, age, a disability, sexual orientation, etc.) or because you were trying to assert any of your statutory rights (e.g. requesting maternity/paternity leave, etc.).

So in these circumstances the employer can take the disciplinary action they have proposed and force you to resign or even dismiss you because of this and you would not be able to challenge this.

You mention they have not followed the three step procedure but that is old law, it was removed quite a few years ago. Even then, it would not have applied to you a it is only relevant to those with the minimum service of 2 years, which you do not have.

So in terms of any legal options to challenge tis, your hands are tied – you cannot prevent the treatment you have received or challenge any dismissal or if you were forced to resign. All that is left for you is to raise any defence you believe is relevant and then hope for the best, ***** ***** it does not end up that way then you cannot legally take the matter further I’m afraid.

I'm sorry if this is not necessarily the answer you wanted to hear but I hope you understand I have a duty to be honest and explain the law as it actually stands and sometimes this does unfortunately mean delivering bad news from time to time. Please let me know if you need me to clarify anything.

Customer:

Thank you for your honest answer Ben, my only defence for returning that night was to keep myself within legal legislation, because what he asked me to do could have had me either breaking the law or spending 2 days out in a waggon when my weekly rest started and if I was on the bay at the time then that bay would have been blocked for two days and no further deliveries could have been made. thank you for your time Ben regarding this matter.

Ben Jones :

you are welcome, all the best

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